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Rep. Serrano: Don’t Forget About Immigrants in Detention

Jan 17, 2017

In The News

Last month, the Department of Justice filed a motion in court contending that bail-setting processes that fail to consider a defendant’s ability to pay violate the Constitution. This is an important step in reforming our criminal justice system. But just down the hall at our nation’s premier law enforcement authority — in the agency that oversees our nation’s immigration courts — another bail problem is growing. Unfortunately, this problem has not received the same level of attention from the attorney general or the public.

While the Department of Homeland Security is tasked with enforcing our nation’s immigration laws, it is the Department of Justice that actually oversees our nation’s busy immigration court system. Immigration judges hear asylum claims, rule on removal proceedings, review custody determinations. Unfortunately, the last of these areas, custody determinations, is confusing and lacks safeguards to ensure that individuals, especially poor individuals, are treated with understanding and respect in the bail-setting process.

The result is a significant number of immigrants who languish in immigration detention facilities — not because they are danger to the community, and not because they are a flight risk, but simply because they are too poor to pay the bond that has been set for them.

Currently, the bail-setting process in our immigration system is twofold, with the Department of Homeland Security making an initial custody determination and the Department of Justice making a custody redetermination in an immigration court at the immigrants’ request. Currently, neither agency has any policy guidance to allow Immigration and Customs Enforcement employees or immigration judges to take an individual’s economic status into account when setting a bond amount. Additionally, the minimum bond amount in statute, $1,500, immediately makes it difficult for immigrants and their families to pay.

The negative impact of the current system cannot be understated. While awaiting removal proceedings, many poor immigrants are stuck in detention facilities that are far from their homes, and far from where their eventual administrative hearing will take place. In addition to the hardship of family separation, being stuck in detention makes it difficult for immigrants to obtain counsel or build a case to defend themselves. In short, it makes it hard for detained immigrants to receive a fair trial.

Current policies also come at great cost to the government. Rather than saving money by using much cheaper alternatives to detention or reforming the bail-setting process so individuals are not unnecessarily detained, keeping individuals incarcerated solely based on their inability to pay means that we spend significantly more on detention facilities, including privatized detention facilities.

That is why I recently introduced the Immigration Courts Bail Reform Act. This legislation will address many of these problems in our current immigration detention system. The bill will eliminate the minimum bond requirement and require our immigration courts to consider the ability to pay in setting a bond amount. It will also mandate that custody and bond hearings and decisions are prompt and reviewable. And it will create a presumption that alternatives to detention are preferable to detaining someone for years prior to their immigration proceedings. All of these reforms will help ensure that we respect the due process and equal protection rights of these individuals.

More and more people are paying attention to these procedural justice problems in our immigration system. The American Civil Liberties Union (ACLU) recently launched a class-action lawsuit against the departments of Homeland Security and Justice regarding these policies (or lack thereof). The federal government has asked that the case be dismissed.

We should not let individuals sit in jail or detention facilities just because they are too poor to pay the price of freedom while awaiting trial. We have made strides in addressing these issues in the criminal justice arena, but it is long past time to fix these same problems in our immigration court system. Justice and fairness should not be available only to those who can afford to pay.

Serrano has served the state of New York in the House since 1990. He sits on the Appropriations Committee and is a member of the Congressional Hispanic Caucus.